Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

Last January, I published an entry addressing the Crawford v. Metropolitan Govt of Nashville decision issued by the Supreme Court.  The Supreme Court held that an employee who responded to questions during an internal investigation is protected by the anti-retaliation provisions of Title VII.  The Supreme Court remanded the case to the District Court in Nashville, and a trial was held 2 weeks ago.  According to an article in the  Chicago Tribune on January 25, Crawford was fired in 2003 after more than 30 years with the school district as the result of her cooperation in the investigation.  "According to court documents, Crawford told investigators Hughes would ask to see her breasts, grab his crotch saying, "You know what's up", and on one occasion pulled her head to his crotch".  Frazier, the HR officer, promised Crawford that she would be protected from retaliation.  On the same day Frazier turned in her report on the allegations finding that no action would be taken against Hughes, Frazier sent a letter to the internal audit department informing them of concerns with the operation of Crawford's payroll department. Crawford has been unable to find another job since her termination in 2003, and she lost her house and car.  She also claimed that her professional reputation had been damaged, due in part to an article in the local newspaper that quoted Metro officials alleging that she might have embezzled money from the department, although there was never a finding of embezzlement.

Practice pointer.  Retaliation can be a very dangerous claim against employers, especially when the facts appear to be as bad as those set out in the Crawford case.  HR professionals must recognize the consequences of retaliating against any employee who is involved in a Title VII investigation, whether they are the accused, the accuser, or a witness.  Supervisory personnel must also be trained not to retaliate in these situations. 

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Tammy Edwards was awarded 5.79 million dollars by a jury in Federal Court in Montgomery for sexual harrassment, negligent supervision, and retaliation.  The Birmingham News reported late Friday, the jury  awarded $795,000 in compensatory damages, $5 million in punitive damages against Hyundai, and $10,000 against a supervisor, Mike Swindle, who was sued in his individual capacity.   The facts of the case involve Swindle propositioning Edwards for oral sex, sex, and threatened to blow her husband's head off.  Swindle also blocked her was in the hall, bumped against her with his hands behind his back, hugged her and pulled her hair by grabbing her pony tail.  Edwards complained to one supervisor, who took no action although he admitted he knew that Swindle's behavior was often objectionable.  She also complained to another supervisor, who laughed it off and said that Swindle will tell you "stuff you don't want to hear".  For a more detailed explanation of the causes of action and the facts of the case, you can read Judge Thompson's order denying Hyundai's Motion For Summary Judgment dated March 27, 2009. 

This is a textbook case on what can and often does go wrong in the work place.  Edwards missed her sexual harassment training because she was out sick  There was no signed receipt showing that Edward's received the 47 page, single spaced policy manual.  Swindle was transferred to another position, but his physical location was actually closer to Edwards then before he was transferred.  Swindle continues to work at Hyundai.

Practice Pointer.  It is essential that all complaints of harassing behavior be treated seriously, a proper investigation take place, and the appropriate remedial measures be implemented.  For an interesting perspective on how the general public views these type of cases, I would highly recommned that you read the Birmingham News article and the comments from the readers. 

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After a relatively quiet 2008 session on employment related issues, the United States Supreme Court issued it's second employment related decision in the past 2 weeks.  Today, in Crawford v. Metropolitan Govt of Nashville, the Supreme Court decided that an employee, who responded to questions during an internal investigation is protected under the anti-retaliation provisions of Title VII.  Crawford, a 30 year employee, was questioned by a Metro Government HR manager during an internal investigation concerning rumors of sexual harassment by Mr. Hughes, the school district's employee relations director.  She responded that Hughes had sexually harassed her.  Crawford was terminated shortly thereafter for embezzlement.  She filed her suit under Title VII, alleging that she was retaliated against for reporting Hughes' behavior during the investigation.  Hughes was not disciplined at all.  The court found that the anti-retaliation provision of Title VII extends protection to an employee who speaks out about discrimination not on her own initiative, but in response to questions asked during an internal investigation.  The Court found her response was covered under the "opposition" clause as a disapproving account of Hughes' sexually obnoxious behavior toward her. 

Practice Pointer.  During the course of an investigation, it is imperative that the employer learn of what happened as quickly as possible.  Witnesses, in answering questions during an investigation, are protected by the anti-retaliation provisions of Title VII.  Before any adverse action is taken against a witness in an investigation, it is important to confer with HR and/or legal counsel to make sure that the action is not retaliatory. 

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